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Minutes Have Been Seen by the Administration) 立法會 Legislative Council Ref : CB4/PL/AJLS LC Paper No. CB(4)272/17-18 (These minutes have been seen by the Administration) Panel on Administration of Justice and Legal Services Minutes of meeting held on Monday, 22 May 2017, at 4:30 pm in Conference Room 1 of the Legislative Council Complex Members present : Dr Hon Priscilla LEUNG Mei-fun, SBS, JP (Chairman) Hon Dennis KWOK Wing-hang (Deputy Chairman) Hon James TO Kun-sun Hon Paul TSE Wai-chun, JP Hon LEUNG Kwok-hung Hon Steven HO Chun-yin, BBS Hon Frankie YICK Chi-ming, JP Hon CHAN Chi-chuen Dr Hon Fernando CHEUNG Chiu-hung Hon Martin LIAO Cheung-kong, SBS, JP Hon POON Siu-ping, BBS, MH Hon CHUNG Kwok-pan Hon Alvin YEUNG Hon CHU Hoi-dick Hon Jimmy NG Wing-ka, JP Dr Hon Junius HO Kwan-yiu, JP Hon Holden CHOW Ho-ding Hon YUNG Hoi-yan Hon CHEUNG Kwok-kwan, JP Hon HUI Chi-fung Members absent : Dr Hon Elizabeth QUAT, JP Members attending : Hon Charles Peter MOK, JP Hon Tanya CHAN [According to the Judgment of the Court of First Instance of the High Court on 14 July 2017, LEUNG Kwok-hung, Nathan LAW Kwun-chung, YIU Chung-yim and LAU Siu-lai have - 2 - been disqualified from assuming the office of a member of the Legislative Council, and have vacated the same since 12 October 2016, and are not entitled to act as a member of the Legislative Council.] Public officers : Item III attending Department of Justice Mr Peter WONG Deputy Solicitor General (Policy Affairs) Ms Peggy AU YEUNG Senior Assistant Solicitor General (China Law) (Acting) Ms Ines LEE Senior Government Counsel Miss Melissa KIANG Senior Government Counsel (Acting) Ms Mary HO Government Counsel Item IV Department of Justice Ms Theresa JOHNSON Law Draftsman Mr Gilbert MO Deputy Law Draftsman (Bilingual Drafting and Administration) Ms Karmen KWOK Senior Government Counsel Mr Edward WONG Systems Manager(2) - 3 - Item V Department of Justice Mr Keith YEUNG, SC, JP Director of Public Prosecutions Mr Alan SIU, JP Director of Administration and Development Mrs Apollonia LIU, JP Deputy Director (Special Duty) Ms Polly WAN Senior Assistant Director of Public Prosecutions I (3) Attendance by : Item III invitation Hong Kong Bar Association Ms Corinne D'A REMEDIOS Mr Jeremy S K CHAN Ms Bonnie Y K CHENG The Law Society of Hong Kong Mr Dennis HO Chairman, Family Law Committee Ms Anne Barbara HUNG Member, Family Law Committee Ms Jennifer IP Wing-ching Member, Family Law Committee Ms Catherine POR Keng-guan Member, Family Law Committee Ms Kally LAM Assistant Director, Practitioners Affairs Department - 4 - Item IV Hong Kong Bar Association Mr Martin W H WONG Item V Hong Kong Bar Association Mr Graham A HARRIS, SC Clerk in attendance : Ms Sophie LAU Chief Council Secretary (4)2 Staff in attendance : Mr Stephen LAM Senior Assistant Legal Adviser 2 Miss Joyce CHING Senior Council Secretary (4)2 Ms Jacqueline LAW Council Secretary (4)2 Miss Vivian YUEN Legislative Assistant (4)2 I. Information paper(s) issued since the last meeting Members noted that the following information paper had been issued since the last meeting. LC Paper No. CB(4)1033/16-17(01) -- Information paper entitled "Proposed Legislative Amendments relating to the Procedures of Civil Appeals to the Court of Appeal" provided by the Judiciary Administration - 5 - Action II. Items for discussion at the next meeting LC Paper No. CB(4)1022/16-17(01) -- List of outstanding items for discussion LC Paper No. CB(4)1022/16-17(02) -- List of follow-up actions 2. The Chairman sought members' view on whether the two discussion items, "Reducing the use of paper in the Judiciary" and "Enhancing the Judiciary's website", as proposed by Dr Elizabeth QUAT in her letter dated 19 May 2017 should be added to the list of outstanding item for discussion. Members agreed. 3. Members agreed that the next regular meeting scheduled for 26 June 2017 at 4:30 pm would be extended to end at 7:30 pm to allow more time to discuss the following items: (a) Legal education and training in Hong Kong; (b) Implementation of the recommendations made by the Law Reform Commission; and (c) Proposal to write off an irrecoverable judgment debt. III. Proposed Arrangement with the Mainland on Reciprocal Recognition and Enforcement of Judgments on Matrimonial and Related Matters LC Paper No. CB(4)1022/16-17(03)-- Administration's paper on "Proposed Arrangement with the Mainland on Reciprocal Recognition and Enforcement of Judgments on Matrimonial and Related Matters" LC Paper No. CB(4)1022/16-17(04)-- Updated background brief on "Proposed Arrangement with the Mainland on Reciprocal Recognition and Enforcement of Judgments on Matrimonial and Related Matters" prepared by the Legislative Council ("LegCo") Secretariat - 6 - Action Briefing by the Administration 4. At the invitation of the Chairman, Deputy Solicitor General ("DSG") (Policy Affairs) briefed members on the key features of the updated proposed arrangement with the Mainland on reciprocal recognition and enforcement of judgments on matrimonial and related matters ("Proposed Arrangement"). Views of the Hong Kong Bar Association ("Bar Association") 5. Mr Jeremy CHAN said that the Bar Association supported the Proposed Arrangement in principle. Mr CHAN hoped that the legislative proposals to implement the Proposed Arrangement in Hong Kong would be introduced as soon as possible and that the Mainland side would also reciprocally provide avenues to give effect to the orders or judgments made by Hong Kong courts. Views of the Law Society of Hong Kong ("Law Society") 6. Mr Dennis HO said that the Law Society welcomed the Proposed Arrangement and he hoped that an agreement on the arrangement would be signed as soon as possible with the Mainland authorities. Mr HO stressed the importance for reciprocal enforcement of maintenance orders and the return of children being "wrongfully removed" from Hong Kong. Mr HO believed that the Proposed Arrangement could establish a mechanism for reciprocal recognition of civil judgments in matrimonial and family cases between Hong Kong and the Mainland, thereby providing better safeguards to parties to cross-boundary marriages and their children. Discussion Safeguards under the Proposed Arrangement 7. Dr Fernando CHEUNG said that he supported the direction of the Proposed Arrangement. Dr CHEUNG pointed out that it was not uncommon for the courts in the Mainland to give orders granting the custody of siblings to a different parent, thereby splitting up the siblings. Dr CHEUNG also expressed concern with the difficulty in establishing a mechanism for reciprocal recognition and enforcement of matrimonial judgments due to the differences in legal principles and civil procedures between Hong Kong and the Mainland. Furthermore, parties might try to affect the judgments of the Mainland courts by means of bribes. With a view to protecting the interests of the child - 7 - Action concerned , Dr CHEUNG asked whether any safeguard measures would be introduced under the Proposed Arrangement. The Chairman raised a similar concern on custody orders granted by the Mainland courts. 8. In response, DSG (Policy Affairs) advised that according to the Proposed Arrangement, if the Mainland court considered that the recognition and enforcement of the Hong Kong judgment was manifestly contrary to the basic legal principles of Mainland law or the social and public interests of the Mainland; or the Hong Kong court considered that the recognition and enforcement of the Mainland judgment was manifestly contrary to the basic principles under the law of Hong Kong or the public policy of Hong Kong, the recognition and enforcement of such judgment would be refused under the Proposed Arrangement. In addition, if the judgment involved a child, the court should take into account the best interests of the child in deciding the application of the ground of refusal mentioned above. Furthermore, if the judgment was obtained by fraud, the recognition and enforcement of such judgment would also be refused under the Proposed Arrangement. DSG (Policy Affairs) supplemented that, in considering the application of the above grounds of refusal, procedural fairness would be the prime consideration. 9. Dr Fernando CHEUNG pointed out that a more financially able party to a cross-boundary marriage might try to start a cause of action and obtain a judgment in the Mainland in his/her favour and then seek to enforce the judgment in Hong Kong. With a view to preventing a financially able party from depriving the rights of the other party, Dr CHEUNG asked whether any measures would be introduced under the Proposed Arrangement in this regard. 10. DSG (Policy Affairs) advised that if the judgment was rendered in a cause of action which was accepted by the original court after the requested court had already accepted the cause of action on the same dispute, the recognition and enforcement of such judgment would also be refused. 11. Dr Fernando CHEUNG said that even with the safeguard mentioned above, a financially able party could still take control by starting a cause of action in the Mainland as early as possible before any other court in Hong Kong had accepted the cause of action on the same dispute. Referring to Dr CHEUNG's concern, the Chairman suggested the Administration to handle such cases from a humanitarian point of view in order to safeguard the best interests of the families and the children concerned. - 8 - Action Other related measures 12. Noting that due process instead of the merits of individual cases would be the main consideration in recognition and enforcement of judgments, Dr Fernando CHEUNG reiterated his concern on the enforcement of custody orders granted by the Mainland which could result in the splitting up of siblings.
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